CASE NO.: Appeal (civil) 3418 of 2003 PETITIONER: SURENDRA SINGH GAUR. RESPONDENT: State of M.P. and Ors. DATE OF JUDGMENT: 22/09/2006 BENCH: S.B. SINHA & DALVEER BHANDARI JUDGMENT:
JUDGMENT
Dalveer Bhandari, J.
This appeal is directed against the judgment of the Madhya Pradesh
Administrative Tribunal, Bhopal Bench at Bhopal, M.R in Transfer
Application No.333 of 1988 dated 7.5,1996.
Brief facts which are necessary to dispose of this appeal are as under:
The appellant was appointed on 18.10.1967 vide Order No.6857/8432/14-1 on
the post of Assistant Agriculture Engineer in the department of Agriculture
in the State of Madhya Pradesh. He on his own volition on 2.7.1975
requested to be transferred and absorbed in the department of Irrigation.
The appellant made the request for transfer because there were limited
chances of promotion in the department of Agriculture and there were
greater opportunities of promotion in the Irrigation department.
According to the stand of the respondents, the – department of Irrigation
is a separate department from the Agriculture department and both the
departments maintain their separate seniority lists. Both the departments
were under the control of the State of Madhya Pradesh, but the service
conditions of the employees in both the departments are governed by their
respective rules and guidelines. In both the departments, the seniority is
computed from the date of appointment in the- department. Therefore,
according to Rules, the seniority of the appellant in the Irrigation
department is computed from the date of his taking charge in. the
Irrigation department. This position is clear and consistent in the
government that when an employee, on his own volition, requests for
transfer from one department to another department, then his seniority is
computed from the date of joining that department and the employee is not
entitled to get benefit of past service.
The Irrigation department on 27.1.1981 accepted the request of the
appellant for transfer and consequently he was permanently absorbed in the
post of Assistant Engineer (Civil) in the Irrigation department from the
date of taking over the charge. The relevant portion of the transfer order
dated 27.1.1981 is reproduced hereinbelow :
“Shri Surendra Singh Gaur, Agricultural Engineer (River Valley Project) .is
merged/absorbed from the date of taking over charge of the post of
Assistant Engineer (Civil) in the Irrigation department, and with the
consent of the Agriculture Department. From the date of taking over charge
he shall be eligible for seniority in the cadre of Assistant Engineers.”
Therefore, the appellant from the very beginning was fully aware that his
past service in the Agriculture department would not be counted in the
Irrigation department in computing his seniority. The appellant opted and
applied for transfer and absorption in the Irrigation department having the
knowledge that there would be greater chances of promotion in the
Irrigation department. On his absorption in the Irrigation department, the
appellant `was released from the Agriculture department and consequently,
he had lost his lien to the post previously held by him in the Agriculture
department. Now, the appellant upon absorption in the Irrigation department
had to be governed by the conditions of service in the Irrigation
department.
It may be relevant to mention that the department of Agriculture by order
dated 16.7.1982 gave the appellant proforma promotion to the post of
Agriculture Engineer in the Agriculture Service Class-I.
The case of the respondents, is that the Irrigation department could not
give benefit of past service in the Agriculture department to the appellant
more particularly, when the services of the appellant were not borrowed by
the Irrigation department but the appellant voluntarily sought transfer and
absorption in the Irrigation department In other words, the appellant was
transferred on his own volition and request, therefore, his service
conditions were governed by the rules of the Irrigation department.
In the counter-affidavit, the respondents further asserted that an employee
has a right to continue in his department and maintain seniority, but
according to Rules he cannot get transferred and be absorbed in another
department and take benefit of the past service of the erstwhile
department. Therefore, on transfer to the Irrigation department on his own
request, wherein he was permanently absorbed from the date of his taking
over charge, he had lost his lien in the Agriculture department and ceased
to be an employee of the Agriculture department. Therefore, promotion, if
any, could be given to the appellant on the basis of his service in the
Irrigation department. The appellant made representation to the Irrigation
department regarding ex-post facto merger (absorption) on the post of
Executive Engineer. A reply to the representation was sent on 8.8.1983. The
same is reproduced as under:
"Major, Medium & Minor, Narmada Valley Development Department No.3(B)/189/P/31/18Q Bhopal, Dated 8.8.1983 To, Shri Surendra Singh Gaur, Assistant Engineer (I.F.C.) Office of Engineer-in-Chief, Irrigation Department, Bhopal.
Sub:- Regarding ex post facto merger (absorption) on the post of Executive
Engineer.
Ref.:- Your Representation
With reference to your above representation, it is informed as per
the order that your ex post facto absorption on pay scale .of Class
I post of Executive Engineer is difficult in Irrigation department.
If you want to go back to Agriculture department and that
department is also ready to take you back, this department has no
objection.
Sd/-
(R.P. Verma)
Under Secretary
Govt. of Madhya Pradesh
Major, Medium Minor & Narmada
Valley Development Department
Endt.No.3(B)/189/P/31/180 Bhopal, Dated 8.8.1983
Copy forwarded to:-
The Secretary, Govt. of M.P., Agriculture Deptt., for information and
necessary action.
Sd/-
(R.P. Verma)
Under Secretary
Govt. of Madhya Pradesh
Major, Medium Minor & Narmada
Valley Development Department”
The Irrigation department gave the option to the appellant to go back to
the Agriculture department, but the Agriculture department refused to take
back the appellant because according to the Agriculture department he had
lost his lien in the department and the Agriculture department was not
under any obligation to take back the appellant. Thereafter, the appellant
filed a writ petition before the High Court of Madhya Pradesh, Indore Bench
at Indore (M.P.No. 145/87) praying that
“A writ direction or order as may be deemed fit be issued so that the
petitioner is placed in service at his proper post with proper pay to which
he has become entitled to. Cost of this petition be also awarded to the
petitioner.”
By later amendment dated 19.12.1984, the appellant prayed for relief as
follows:-
“A writ direction or order as may be deemed fit be issued that the
petitioner be given his arrear claim/dues of promotion (position, pay-scale
and pay fixation and arrears of pay) in agriculture service Class-I in
Agriculture department effective from the date 29.8.1979 for which he has
been entitled by the State Government, and also due to this, the further
promotions (postings, pay-scale and pay fixations and pay) be given to the
petitioner equally which have been given by the Government to his juniors
in Agriculture Department in the Class-II and Class-I service as on the
date 29.8.1979. The cost of this petition and the compensation due to this
situation be also awarded kindly to the petitioner.”
The aforesaid petition was transferred to the Tribunal under Section 29 of
the M.P. Administrative Tribunal Act (hereinafter referred to as the Act’)
by the order of High Court dated 21.9.1988.
The Tribunal gave opportunity to the – State Government to file its reply
but for seven long years no reply was filed and ultimately the petition was
disposed of by the Tribunal without hearing the State Government. The
Tribunal after noting the relevant facts observed that according to the
service jurisprudence, an employee has a right to continue in his
department. He has no right to get transferred to some other department and
thereafter claim benefit of his past service. The Irrigation department
absorbed the appellant on his own request as an Assistant Engineer on
transfer on permanent basis. As a result, the appellant had lost his lien
in the Agriculture department He ceased to be an employee of the
Agriculture department. The refusal of Agriculture department to accept him
back on transfer in the Agriculture department, Engineering Services was
well within the jurisdiction of the Agriculture department. The Tribunal
did not find any infirmity in the approach of the respondents.
The Tribunal however, observed that the appellant was given proforma
promotion by the Agriculture department vide order dated 16.7.1982. This
post facto promotion to Class-I post was effective from 29.8.1979.
Therefore, according to the well-established rules of service
jurisprudence, the Agriculture department was under an obligation to pay
the difference of’salary and pay, which the appellant had drawn in the
Agriculture department as an Assistant Agriculture Engineer and the salary
and allowance to which he became entitled to as a result of the proforma
promotion to the rank of Agriculture Engineer. The Agriculture department
was directed to re-fix his salary in the higher post with effect from
29.8.1979. The difference between revised salary and the salary drawn by
the appellant in the department for the period during which he worked in
the Agriculture department should be worked out and disbursed by the
Agriculture department within four months of the communication of those
orders.
The Tribunal further observed that the Irrigation department had agreed to
absorb the appellant on transfer only as an Assistant Engineer. The
Irrigation department was well within its right and justified in their
stand that the appellant cannot be absorbed as an Executive Engineer in the
Irrigation department. However, having regard to the peculiar circumstances
of the case, and keeping in view the well-established principles of `pay
protection’ as applicable in Government service, it will be fair and proper
that the Irrigation department, without giving higher rank, should give the
benefit of `pay protection’ to the appellant. The Tribunal further directed
that the difference between the pay drawn by the appellant as an Assistant
Engineer, Irrigation and the pay fixed by the Agriculture department in
accordance with the directions given by the Tribunal may be treated as
personal pay of the appellant. This difference (personal pay) will be
absorbed in the future increments to be earned by the appellant in the
Irrigation department. The Tribunal also directed that the arrears of
personal pay thus derived may be disbursed to the appellant within six
months of the receipt of information from the Agriculture department
regarding his revised salary at the time of transfer of service to the
Irrigation department.
The Tribunal observed that the Agriculture department cannot be directed to
take back the appellant and give higher rank with reference to his juniors
in the Agriculture department. Since the appellant on his own volition had
gone to Irrigation department and after his absorption in the Irrigation
department had lost the lien in the Agriculture department, therefore no
direction can be given now to the Agriculture department.
It may be pertinent to mention that the appellant has already superannuated
from the service. As far as financial benefits accruing to him because of
proforma promotion by the Agriculture department vide order dated 16.7.1982
with effect from 29.8.1979 are concerned, the Tribunal has correctly given
direction so that the appellant can derive the fruits of promotion in
pursuance to the order dated 16.7.1982 of the Agriculture department.
The appellant appeared in person. We have heard him at length and also
considered his written submissions. The appellant argued that there is no
provision in the Rules for transfer of an employee from one department to
another on personal request of a Government servant. The appellant sought
transfer to the Irrigation department in his own interest, but just because
he was not extended the benefit of past service he cannot be permitted to
take a total somersault. Despite this, on the appellant’s representation,
the Irrigation department vide order dated 8.8.1983 (which has been quoted
in the preceding paragraph) mentioned that in case he wanted to go back to
the Agriculture department, the Irrigation department had no objection. The
Agriculture department refused to take back the appellant on the ground
that on his absorption in the Irrigation department, he had lost his lien
in the Agriculture department. In this view of the matter, in law, the
Agriculture department cannot be given direction to take back the appellant
and give him a higher rank. The Tribunal was justified in not directing the
Agriculture department to take back the appellant because he had lost his
lien in that department on absorption in the-Irrigation department.
However, the Tribunal appropriately gave direction for financial benefit to
the appellant according to the provisions of the M.P. Fundamental Rules,
1960.
We have carefully considered the submissions of the appellant and the
respondents. We find no infirmity in the impugned order of the Tribunal. No
interference is called for. The appeal being devoid of any merit is
accordingly dismissed. In the facts and circumstances of the case, we
direct the parties to bear their own costs.